Green v. Town of Bridge Creek.

bridge. For the bridge was so far distant from any public highway, that in no sense did it constitute any portion or part of a highway of the town. Nor do we well see what right the authorities of the town had to object to persons crossing this bridge who might be willing to take the risk of doing so.

It is said by plaintiff's counsel, that the condition of the old ford was such that the plaintiff was compelled to cross the bridge in order to pursue his journey home to Sugartown, and that the town is responsible for imposing upon him this risk. The crossing by the old ford in times of high water was confessedly difficult, but, as before remarked, was not impracticable at this time. But the highway across the creek at the dalles was provided with a safe bridge, which the plaintiff might have taken and avoided all danger. It must be borne in mind that the old pinery road led through a barren and uncultivated country, where population was sparse. And it would be onerous to require towns in such disricts to build and maintain as many bridges as in more wealthy and populous communities. We do not, however, intend to relieve towns from the duty the statute imposes to keep the highways and bridges within their limits in a suitable condition for public travel. Had the bridge where the injury was received been upon a public highway which the town was bound to keep in a safe and proper condition, the liability would be enforced.

But again it is said the town was negligent in not using some means to warn travelers off the way on which the bridge was situated, and to prevent them from incurring danger in crossing it. The evidence shows very clearly that the plaintiff was well acquainted with this bridge, having crossed it but three days before the accident, while going to Eau Claire. A notice to him of its obvious defects and insufficiency would afford no information which he did not already possess. He was perfectly familiar with the bridge, and doubtless had as much knowledge of its condition as any one. But, under the circumstances of the case, we cannot assent to the proposition that it was the duty of the defendant town to place barriers across the way leading from the highway over the hill to this bridge; or to post notices informing the public that the bridge did not belong to the town, or that it was out of repair. It is apparent that if barriers were placed or notices posted anywhere, in order to be effectual for warning, they should have been placed or posted at or near the point where the track diverged from the highway, which would be in the town of Lincoln. But we do not understand it to be the duty of a town, to provide barriers or post notices to prevent travelers from driving off the public highway to places of danger not contiguous to the high

Green v. Town of Bridge Creek.

way but distant from it. In Chapman v. Cook, 10 R. I. 304; S. C., 14 Am. Rep. 686, the court say that no such obligation rests upon the town, and the doctrine seems reasonable and just. In that case an accident happened to one who drove off by mistake from the public highway upon a private way connected therewith, and was injured by a defect in the private way some fifty to one hundred feet from the junction of the two ways. And it was claimed that it was the duty of the town, knowing the private way to be dangerous, to place a fence at the deviation so as to prevent persons passing along the highway from driving off into it. But the court, in a well-considered opinion, overruled the position, and denied that any such duty was imposed by law upon the town. There is nothing in this case in conflict with Burnham v. The City of Boston, 10 Allen, 290. In the latter case there was an excavation within the limits of one of the streets of the city, and it appeared that persons were accustomed to pass on a way, either public or private, over adjacent lots, into the street where the excavation existed. The city had provided no barrier for the purpose of preventing persons who passed over the way from the adjoining lots into the street from falling into the excavation. And it was held that the city had unreasonably omitted to erect such a barrier, and was guilty of negligence for which it was liable to a person injured in consequence of the excavation. Substantially the same doctrine. was laid down by this court in The City of Milwaukee v. Davis, 6 Wis. 377. See also Seward v. The Town of Milford, 21 id. 485. But in these cases the defect was one in the highway itself, and the danger to be guarded against was not distant from the street, as in the case before us. Here the danger was not any danger upon any public highway, and we see no ground for holding that the town should have adopted measures to prevent persons from leaving the highway and crossing this private bridge. It seems to us that whoever went there, under the circumstances, went at his own risk, and must abide the consequences. These views are decisive of this case, and require a reversal of the judgment.

By the Court.

new trial ordered.

The judgment of the Circuit Court is reversed, and a

Plaintiff purchased property of J. S. and lent it to defendant to be returned upon demand. J. S. was afterward adjudged a bankrupt, and the defendant while so holding as bailee bought the property of the bankrupt's assignee. Held, that defendant could not set up against the plaintiff the title, so acquired even if the original transfer to plaintiff was in fraud of the bankrupt act.

EPLEVIN, for “a pair or set of hay scales, or scales for the

weighing of stock, heavy loads," etc., "formerly owned by one Norton Emmons; " but the ownership and right of possession are alleged to have been in the plaintiffs since January 1, 1872. The answer avers that Norton Emmons was declared a bankrupt, on his petition filed February 18, 1871; that on or about the 7th of January previous, being then insolvent, and acting in contemplation of such insolvency, and with a view to give preference to plaintiffs as his creditors, Emmons assigned a large part of his property, including that here in question, to the plaintiffs, who had reasonable cause to believe that Emmons was insolvent; that such assignment was made in fraud of the provisions of the bankrupt law; that Emmons never delivered possession of the property to plaintiffs; and that one Barrows, his assignee in bankruptcy, took possession of it, with the other effects of Emmons conveyed by the assignment, and, in April, 1872, by leave of the bankrupt court, sold and delivered it to defendants as the property of said bankrupt, and they claim to hold and own it by virtue of such sale.

At the trial, the court refused to give to the jury the instruction recited in the first paragraph of the opinion, infra, there being testimony to which the same was pertinent.

The defendants had a verdict and judgment; and the plaintiffs appealed.

Vilas & Bryant, for appellants. It is undisputed that the defendants obtained possession of the scales as bailees of the plaintiff, under an agreement that they were to use and take care of them and return them to the plaintiff, or, what is the same thing, return the key. Having so obtained possession, they cannot, while in possession, set up a title derived from a third party. Hawes v. Watson, 2 Barn. & Cress. 540; 9 E. C. L. 170; Harman v. Anderson, 2 Campb. 243; Dixon v. Hammon 1, 2 Barn. & Ald. 310; Gosling v. Birnie, 7 Bing. 339; Holbrook VOL. XX.-4

Nudd v. Montanye.

▾ Wright, 24 Wend. 169; Marvin v. Elwood, 11 Paige, 365; McKay Draper, 27 N. Y. 260; Barnard v. Kobbe, 3 Daly, 35; Reed v. Reed, 13 Iowa, 5; Estes v. Boothe, 20 Ark. 583.

Lewis & Tenney and J. C. McKenney, for respondents.

COLE. J. In order to dispose of this case it is unnecessary to consider and decide all the questions which were discussed by counsel on the argument, and we shall not attempt to do so. Our attention will be confined to a consideration of the exception taken to the refusal of the Circuit Court to give the following instruction asked on the part of the plaintiffs, namely: "If the jury find that the defendants obtained possession of the scales from the plaintiffs directly as the agents and tenants of the plaintiffs, and as a loan to the defendants, as the plaintiffs testify, then the defendants are estopped from setting up a title derived from any third party while they were so holding possession, and the plaintiffs should recover."

The instruction was founded upon the testimony of the plaintiffs introduced on the trial, which tended to prove that the scales in controversy were loaned by them to the defendants to be used and taken care of; and that the possession of the scales, or, what was equivalent to the possession, the keys of the scales, were to be returned to the plaintiffs whenever requested. It appeared from the evidence that the, plaintiffs purchased the scales of one Norton Emmons in January, 1871, and that the bailment by them to the defendants was in June or July following. In March, 1871, Emmons was adjudged a bankrupt; and in February, 1872, the defendants, while holding the scales under the contract of bailment, purchased them of the assignee in bankruptcy as part of the estate of the bankrupt. And the counsel for the plaintiffs insists that the deiendants had no right, while in possession of the scales as the agents or bailees of the plaintiffs, to acquire a title from a third party, and set it up to defeat the action. This he claims was an act of bad faith on their part, it being their duty to take care of the scales according to the contract of bailment, and to restore them to the plaintiffs when demanded. It seems to us that this position is sound and in accord with legal principles.

The general rule of law upon this subject, as laid down in the books, is, that the one who has received property from another as his bailee or agent, must restore or account for that property to him from whom he has received it. Story on Bailm., §§ 102 and 103; Story on Agency, § 217; Biddle v. Bond, 6 Best & Smith, 225; Nickolson v. Knowles, 5

Nudd v. Montanye.

66

Mad. 47; White v. Bartlett, 9 Bingham, 378. Generally speaking," says Mr. Justice STORY, "restitution of the property deposited is to be made to the bailor; although there may be special cases in which that would not be required or justified. As, for instance, if the goods have beer deposited by a thief who has been convicted, and the owner reclaims them, the latter alone is entitled to receive them." Story on Bailm., supra. And the learned author shows that by the older authorities it was held that if the goods of A were bailed by B to C, C must redeliver them to B, and was not allowed to alter that possession which had been committed to him in order to restore it to the right owner. But this rule has been relaxed by some of the modern authorities, as will be seen in Biddle v. Bond, supra; Gosling v. Birnie, 7 Bing. 339; Thorne v. Tilbury, 3 Hurl. & Nor. 534; Cheeseman v. Exall, 6 Exch. 341; Hardman v. Willcock, note (a) to White v. Bartlett, supra. But it is not necessary to dwell upon these cases, as we do not intend to come in conflict with them. Chancellor WALWORTH, in Marvin v. Ellwood, 11 Paige, 366-376, lays down the rule applicable to the case before us. He says "A bailee or agent who has received property as such, is at all times at liberty to show that his bailor or principal has parted with his interest in the property subsequent to the bailment, or to the delivery to the agent. But such bailee or agent cannot at law dispute the original title of the person from whom he received the property." In Cheeseman v. Exal, MARTIN, B., observes: "There are numerous cases in connection with wharves and docks, in which if the party intrusted with the possession of property were not estopped from denying the title of the person from whom he received it, it would be difficult to transact commercial business." In that case a party had pledged property to which he had no title or right to pledge, and, in an action by the pledgor, the person with whom the property was pledged was allowed to set up the jus tertii to defeat a recovery. In Biddle v. Bond, there is a full examination of the English cases bearing upon the question as to when or under what circumstances an agent or bailee may set up the jus tertii in an action by his principal, and when the bailee would be estopped to deny the bailor's title. Says BLACKBURN, J.: "We think that the true ground on which a bailee may set up the jus terti: is that indicated in Shelbury v. Scotsford, Yelv. 23, viz.: that the estoppel ceases when the bailment on which it is founded is determined by what is equivalent to an eviction by title paramount. It is not enough that the bailee has become aware of the title of a third person." In this case, however, the defendants have acquired an adverse title, and seek to set it up to defeat the rights of their principal against their own man